In re Hummer

• Decision Date: 05 February 1945
• Citation: 317 Mass. 617,59 N.E.2d 295
• Parties: HUMMER'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 617

59 N.E.2d 295

HUMMER'S CASE.

Supreme Judicial Court of Massachusetts, Berkshire.

Feb. 5, 1945.

Proceeding under the Workmen's Compensation Act by Frank Hummer, claimant for compensation for disability alleged to have resulted from an accidental injury. From a decree dismissing the claim in conformity with a decision of the Industrial Accident Board, claimant appeals.

Decree affirmed.Appeal from Superior Court, Berkshire County; Burns, Judge.

Before FIELD, C. J., and QUA, DOLAN, RONAN, and SPALDING, JJ.

S. B. Horovitz, of Boston, for employee.

E. H. Potter, of Boston, for the insurer.

RONAN, Justice.

The employee, a butcher, while taking meat out of a barrel on September 28, 1937, received a scratch on the back of his right hand which became infected, necessitated three operations at a hospital where he was confined for several months, resulted in the amputation of a large part of his right hand, and rendered his hand permanently incapable of use. During the last operation, he suffered a pulmonary embolism or a coronary thrombosis and became critically ill. Upon the application of the insurer to discontinue compensation, a single member of the Industrial Accident Board found, on March 5, 1941, that the employee was totally disabled; that his total disability was in part produced by the fact that he had been totally deprived of the use of his right hand and in part due to heart disease; that he had a heart disease which existed at the time of his injury, but that the surgical operations required in the treatment of his injury ‘precipitated an attack of symptoms due to the disease, from which symptoms he is not as yet free and which in themselves are totally disabling.’ He ordered the continuance of payments at the rate fixed for total incapacity. Neither party sought a review of this decision.

The insurer made payments amounting to $4,500, the maximum amount provided by G.L(Ter.Ed.) c. 152, § 34, as amended by St. 1935, c. 332, § 2, and St. 1941, c. 624, for total incapacity. The insurer also paid $750 as specific compensation for the injury to the right hand. G.L.(Ter.Ed.) c. 152, § 36, as appearing in St. 1935, c. 333. The employee then applied for further compensation under G.L.(Ter.Ed.) c. 152, § 34A, inserted by St.1935, c. 364, on the ground that the disability caused by his injury was total and permanent. The matter was heard by a member of the board other than the one who had conducted the earlier proceeding in 1941. At this last hearing the employee's physician testified, as he had at the previous hearing, that the surgical operations percipitated the heart attacks and that he saw no improvement in the employee's condition. The hospital record disclosed that, following an operation on his hand, the employee had suffered an embolism in his right lung. The record made no mention of anything happening to the heart. The employee's physician did not agree with the employee's surgeon that he had suffered a pulmonary embolism but was inclined to believe, from changes he observed when he examined the employee, that he had suffered a coronary thrombosis, although it was unusual for an operation to produce a coronary thrombosis and pulmonary embolisms more commonly result from an operation. He had never seen a coronary thrombosis that he could say was caused by an operation. He testified that the operation might have precipitated a coronary thrombosis a bit earlier than it would otherwise have occurred. He also testified, in answer to a question by the single member as to whether or not there was a causal connection between present disability and the injury, taking into consideration the infection and the operations following the injury, ‘that he thought that may be considered in total as an effort factor that may or may not precipitate such a condition.’ He did not know whether the present condition of the employee's heart would have been any different if he had not sustained the injury. There was also evidence that the employee had some heart muscle degeneration but no more than many men of his age have; that the infection and surgical operations would not produce this damage to the heart muscles nor would they have any effect upon the arteries of the heart; that the degeneration of the heart muscle was not sufficient to cause disability; that if the employee suffered a coronary occlusion or thrombosis, then the changes wrought by the occlusion would disappear as soon as the occlusion had healed which might be a few weeks, months or sometimes not at all; that if the employee had suffered a coronary thrombosis it healed in about two weeks; and that his present heart condition ‘has nothing to do with his injury.’ There was also testimony that the employee was able to do such work as a one-handed man might do, and that notwithstanding the degeneration of the heart muscle he could do any type of work except hard laboring jobs. There was testimony to the contrary.

The single member found that the employee as a result of the original injury has lost the use of his right hand; that in addition he has a heart condition that is disabling to some degree; and that the combination of the injury and the heart condition renders the employee totally disabled. He found that the heart condition from which the employee is suffering was not causally related to the injury; that apart from the heart condition, the employee for all practical purposes was a one-handed man in the labor market, but that he was not thereby totally and permanently disabled. He denied, on December 18, 1942, the claim for further compensation. A reviewing board adopted the findings of the single member and dismissed the claim. The employee appealed from a final decree entered in the Superior Court dismissing his claim.

The employee contends that the finding made in the earlier proceeding that the surgical operations necessitated by the injury had brought on an attack of the existing heart disease was equivalent to a finding that there was a causal connection between the injury and the disease, and that that finding from which no review was taken settled the existence of this relationship. It is true that the liability of the insurer when once finally determined cannot be further heard by a single member or a reviewing board, and that a decision of the member or the board, from which no review or appeal is taken, that incapacity has ceased, where the case is not reserved for further consideration or in the absence of a statute authorizing further consideration, is also final and that there is no jurisdiction to hear claims for disability alleged to have been subsequently sustained. See G.L. (Ter.Ed.) c. 152, § 12, as amended by St.1932, c. 117; Hurley's Case, 235 Mass. 387, 126 N.E. 775;Kareske's Case, 250 Mass. 220, 145 N.E. 301;Brode's Case, 251 Mass. 414, 146 N.E. 731;McCarthy's Case, 253 Mass. 553, 149 N.E. 606;O'Neil's Case, 262 Mass. 266, 159 N.E. 731;Ziccardi's Case, 287 Mass. 588, 192 N.E. 29.

The determination of the cause and extent of the then existing incapacity of the employee was the only question presented for decision at the first proceeding. That the loss of the use of the hand was permanent was not disputed. The duration of his disability due to his general condition was not in issue and was not decided. The length of time that the effect of the surgical operations might be reflected in the condition of the heart was not passed upon. The finding went no farther than to establish that the operations precipitated an attack of the symptoms of heart disease ‘from which symptoms he is not as yet free.’ There is nothing here suggestive of any lasting injury to the heart. The flareup of the heart condition had not then subsided, and there...